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April 12, 2008

Effective NYT editorial on Second Chance Act

Today's New York Times has this effective editorial discussing this week's big news of the Second Chance Act finally becoming law. Here is a snippet:

The compassion and bipartisanship that President Bush promised in the 2000 election campaign made a long-awaited appearance this week as he signed a law to help prisoners re-enter society. The Second Chance Act, five years in the making, is a welcome relief from the simplistic lock-’em-up posture of recent decades that has the United States leading the world in incarceration. It is an important start, but more still needs to be done....

The $326 million that the law promises has yet to be appropriated. Congress should quickly allocate the money as a down payment on a goal that Mr. Bush described as redemption, as he alluded to his own past struggle against alcoholism.

The Second Chance Act should be the start of a new, more enlightened approach to criminal justice. The obvious next step is for the administration to retreat from its support for unduly harsh prison sentences, which are enormously expensive — and leave the criminal justice system with too few resources to do the sort of rehabilitative work the new law wisely calls for.

April 11, 2008

So much in (and missing from) Senator Clinton's anti-crime proposal

As first noted here, Senator Clinton proposed to spend $4 billion a year on anti-crime measures in a big speech in Philadelphia today. Details on her proposal are now available in this loooong press release on her website. Interestingly, the press release is titled "Hillary Clinton Sets Goal Of Cutting Murder Rate In Half: 'Solutions For Safe & Secure Communities Now' Plan Will Provide 100,000 New Cops And Invest $1 Billion To Reduce Number Of Repeat Offenders." There is almost too much included in the plan to take it all in.

Perhaps what is as notable as what's in the Clinton plan is what is missing. For example, consider this press report on the plan, headlined "Clinton gun shy in Pennsylvania crime address." Here are snippets:

Hillary Clinton today declared a goal of cutting the nation's big-city murder rate in half, addressing an issue that has dominated politics here but avoiding a mention of the one thing that local officials see as a consensus solution to their crime problem: new gun laws....

Clinton talked about gangs and drugs as a cause of homicides, but mentioned guns only in passing. She noted “a direct correlation between the illegal gun sales and homicides,” as she proposed a new initiative to crack down on interstate gun trafficking and allow federal agencies to share information on the transfer of guns. In addition, Clinton said she would work to renew the assault-weapons ban, signed by President Clinton in 1994 but allowed to lapse a decade later.

"She's being respectful of what's really her base," said Ken Lawrence, a Pennsylvania Democratic consultant neutral in the presidential campaign. "But I don't know how you talk about homicide in Philadelphia without talking about guns."

Relatedly, I noticed that the Clinton press release says nothing about sentencing reform issues and says very little about mass incarceration. In addition, there was nary a mention of the death penalty, pro or con, or about the on-going debate over lethal injection protocols or about wrongful convictions in capital cases and non-capital cases.

Interestingly, regarding mandatory minimums, the press release does have this notable line: "At the federal level, Hillary will reform mandatory minimums for non-violent offenders, starting by eliminating the mandatory minimum for simple possession of crack cocaine and eliminating the disparity between crack and powder cocaine." Of course, she could mean that she plans to increase the mandatory penalty for powder cocaine in order to deal with the crack/powder disparity, but I seriously hope that's not exactly what she has in mind.

Sixth Circuit splits on the substantive unreasonableness of probation sentence in fraud case

Today in US v. Hunt, No. 06-6300 (6th Cir. April 11, 2008) (available here), a panel of the Sixth Circuit splits over the substantive reasonableness of a probation sentence in a fraud case. Here is one notable passage from the majority (with cites omitted):

The district court appears to have relied in substantial part on its doubt that Hunt intended to commit fraud. If the district court did so rely, then it is necessary for us to remand under the abuse-of-discretion scope of review. This is because it would be improper for the judge in sentencing to rely on facts directly inconsistent with those found by the jury beyond a reasonable doubt. Indeed, we have stated repeatedly, albeit outside the sentencing context, that a district court abuses its discretion when it relies on clearly erroneous facts. And a factual determination is necessarily clearly erroneous where a jury has previously found to the contrary beyond a reasonable doubt. Nothing in § 3553(a) suggests that Congress intended that sentencing judges should rely on a defendant’s innocence when the defendant has already been found guilty beyond a reasonable doubt. Moreover, it does not matter that the district court relied on a number, even a large number, of relevant facts in its sentencing, if it also relied on facts that it could not properly consider. Thus we would not hesitate to reverse a sentence if a judge relied on numerous relevant facts but also relied, for instance, on the morning’s horoscope.

Here is one notable passage from the dissent:

The majority holds that it was substantively unreasonable for the district court to rely on an impermissible factor in determining Hunt’s sentence. The impermissible factor the majority hangs its hat on is what it has termed Hunt’s “innocence.” This is the majority’s mis-labeling of the fact that the district court found Hunt to be less culpable than other defendants involved in the fraudulent scheme and that the evidence against him was objectively weaker than that against other defendants. The district court did not rely on his “innocence;” Hunt was found guilty by a jury and that conviction will stay with him for the rest of his life. Instead, after a thorough and thoughtful analysis of the § 3553(a) factors, the district court found Hunt less culpable and sentenced him accordingly. That is not impermissible, and tellingly, the majority is unable to point to a single sentencing case in support of its holding.

Lots of new goodies from the USSC

Public Comment on Proposed Amendments to the Sentencing Guidelines: The Commission received comment from the judiciary, the executive branch, members of the defense bar, and interested organizations in response to its request for public comment on proposed amendments to the sentencing guidelines (see 73 FR 4931). The public comment is accessible through this link.

April 2008 Preliminary Post-Kimbrough/Gall Data Report: A updated set of tables presenting preliminary data on fiscal year 2008 cases sentenced on or after December 10, 2008. The numbers are prepared using data received, coded, and edited by the Commission by April 8, 2008 (available here).

I am especially exciting to consume the latest, greatest post-Kimbrough/Gall data, though I am hopeful Sunday in Augusta will have my attention a bit more than sentencing data this weekend.

Notable new Fifth Circuit opinion on post-Gall sentence review

A helpful reader pointed me to the Fifth Circuit's work in United States v. Bonilla, No. 06-40894 (5th Cir. Apr. 10, 2008) (available here) which was released just today and grapples with the sentencing process the Supreme Court laid out in Gall. Here is one of various interesting snippets:

Examining the full sentencing record reveals the district court’s reasons for the chosen sentence and allows for effective review by this court. Our task would have been easier had the district court stated its reasons explicitly on the record, a procedure we strongly recommend. A clear statement of reasons on the record also serves to prevent the inefficiency that would result from remand and resentencing if on appeal we had been unable to determine the court’s reasons from the record. In this case however, our review makes clear both the reasons for the sentence and their adequacy as a matter of law.

Regular readers probably do not need too many hints to figure out which party's sentencing appeal is being rejected in Bonilla.

Senator Clinton making a campaign offensive on crime

Democrat Hillary Rodham Clinton is proposing to spend $4 billion a year on anti-crime measures, including programs meant to reduce the number of ex-convicts who return to prison. The money also would help communities hire more police officers and "community-oriented prosecutors."

Under the New York senator's plan, to be detailed Friday in a speech in Philadelphia, states would compete for $1 billion in annual grants to combat recidivism. It would "promote tough but fair" changes to probation practices and to existing programs meant to steer non-violent drug offenders away from prison, her presidential campaign said in an outline provided early Friday. The goal is to make punishment more certain for those who violate their probation, while also enhancing efforts to help former drug users stay clean and thereby avoid prison, campaign aides said.

They said Clinton would pay for the $4 billion initiative with savings to be identified by a commission she will assign to "identify unnecessary and outdated corporate subsidies for elimination." Groups that oppose deficit spending urge campaigns to be more specific in saying how they will pay for new programs.

Clinton's plan would hire 100,000 new police officers "to address crime, through a modernized personnel grant program." It would spend $250 million a year on "community-oriented prosecutors."

Compared to earlier presidential campaigns, especially those in the 1970s, this year's contest has focused relatively scant attention on crime, with the Iraq war and economic woes dominating the debate. Clinton, noting that violent crime has begun to rise after several years of decline, will focus on the subject Friday as she competes with Sen. Barack Obama for votes in Pennsylvania's April 22 primary.

Here was the first-cut reaction of the thoughtful person who sent me a link to this story: "It appears that your earlier posts regarding crime emerging as a campaign issue have proved prescient. This is probably a smart -- though cynical -- move on Clinton's part; based on anecdotal experiences growing up in the Pittsburgh area, I suspect that the crime issue will play well and possibly stem Obama's growing momentum in PA."

Here is my first-cut reaction: I am very, very excited that Senator Clinton is starting focus seriously on "anti-crime measures," but I am highly suspect that she is going to be able to effectively fund $4 billion initiative with savings from the elimination of "unnecessary and outdated corporate subsidies for elimination." How about instead finding extra money by focusing instead on fixing unnecessary and outdated extreme sentencing terms, like those for non-violent crack offenders. Oh wait, Senator Clinton was against crack retroactivity, so it seems that being tough on corporations, rather than kind to over-sentenced offenders, is the economic key to her anti-crime plans.

A helpful reader pointed me to a new report from the Urban Institute, titled "To Treat or Not to Treat: Evidence on the Prospects of Expanding Treatment to Drug-Involved Offenders." The full report is available at this link, and here is the abstract:

Despite a growing consensus among scholars that substance abuse treatment is effective in reducing recidivism, strict eligibility rules have limited the impact of current models of therapeutic jurisprudence on public safety. This research effort was aimed at providing policy makers some guidance on whether expanding this model to more drug-involved offenders is cost-beneficial. We find that roughly 1.5 million arrestees who are probably guilty (the population most likely to participate in court monitored substance abuse treatment) are currently at risk of drug dependence or abuse and that several million crimes could be averted if current eligibility limitations were suspended and all at-risk arrestees were treated.

April 10, 2008

Why is the Senate wasting time with a capital counsel hearing?

As detailed here, a Senate Judiciary Subcommittee held a hearing earlier this week on "The Adequacy of Representation in Capital Cases." Senator Russ Feingold (D-WI) presided over the hearing, and here is the start of his statement at the start of the hearing:

As a result of the litigation before the Supreme Court challenging the constitutionality of lethal injection as a method of execution, there is currently a de facto moratorium on executions in this country. This presents us with an opportunity while executions are paused to take stock of one of the most serious problems still facing many state capital punishment systems: the quality of representation for capital defendants. That is the purpose of this hearing.

No disrespect meant, but why is the Senate wasting time, money and energy "taking stock" on the quality of representation for capital defendants? Anyone and everyone who honestly assesses the operation of state capital punishment systems should acknowledge that (1) in some states, far too little time, money and energy is spent on the initial representation of defendants charged with murder, and (2) in most cases, far too much time, money and energy is spent on the appellate representation of defendants sentenced to death for the worst murders. Rather than bothering to "take stock" of this reality, Congress should make a more serious effort to get some of the excessive resources spent seeking to impede the executions of convicted murderers redirected toward providing more defendants charged with murder better initial representation.

I am frustrated by this hearing in part because there are so many other capital issues of which the Senate should be "taking stock" during the current national execution moratorium. The Senate could and should be using this time to seriously explore (1) humane execution methods and/or (2) whether murder rates have risen or fallen during the moratoirum period, and/or (3) the true economic costs of capital appeals in federal courts, and/or (4) whether greater use of the federal death penalty in recent years has improved capital justice throughout the nation, and/or (5) what's taking the Supreme Court so long to decide Baze. These are all truly unclear issues that could really benefit from serious congressional attention.

Some media coverage of the Second Chance Act

The signing by President Bush of the federal Second Chance Act has generated a wide array of press coverage, with various outlets having different focal points for their coverage. Consider these different headlines from the different sources:

Pew publication on incarceration's impact on crime

I just received this news of the latest publication from the Pew Public Safety Performance Project, titled “The Impact of Incarceration on Crime: Two National Experts Weigh In.” The short document can be accessed at this link, and here is Pew's description of the document:

This Question & Answer brief features Dr. Alfred Blumstein and Dr. James Q. Wilson, two of the nation’s most respected experts on incarceration and crime. Professors Blumstein and Wilson spoke recently with the Public Safety Performance Project, an initiative of the Pew Center on the States (PCS), about the degree to which increased incarceration deserves credit for the drop in crime across the nation, the likely outcomes of continued prison expansion, and some policies and programs that offer better public safety results for taxpayer dollars.

Electrifying capital issue from Nebraska (on path to GVR?)

This local story provides this electrifying news about Nebraska's death penalty system:

The Nebraska Supreme Court on Wednesday refused to reconsider its decision that electrocution is unconstitutional. The decision was handed down by the court in response to Attorney General Jon Bruning’s request for another hearing in the case. The court did not explain its decision.

It didn’t come as a surprise — Bruning had said he didn’t expect judges who made the landmark decision to change their minds. “Nebraskans overwhelmingly support the death penalty. We’ll do everything possible to ensure the sentences of the state’s worst murderers are carried out,” he said Wednesday. His office plans to appeal to the U.S. Supreme Court.

If and when the Nebraska AG seeks cert on this issue, I think the US Supreme Court would be inclined to GVR the case back to the state courts after the Justices establish a general legal standard for method of execution cases in Baze.

Military man gets break at federal sentencing

Regular readers know that I support giving defendants credit for prior good works at sentencing, in part because they always gets discredit for prior bad works in the form of criminal history enhancements. For this reason, I found this local federal sentencing story, headlined "Decorated veteran gets a break at sentencing," quite interesting. Here are details:

By all accounts, Timothy Pentaleri made quite an impression as a major in the Army Reserves. He apparently made an impression on U.S. District Judge Paul Magnuson, too. Magnuson decided Wednesday that the decorated veteran deserved a sizable break on his sentence for attempting to kidnap his ex-girlfriend last June at the Minneapolis-St. Paul International Airport.

Pentaleri, 43, of Belleville, Ill., pleaded guilty in December with the understanding that sentencing guidelines suggest a prison term of 7¼ to 9 years. He waived any appeals, providing the sentence didn't exceed that period. Assistant U.S. Attorney Erica MacDonald argued that although the guidelines are advisory, they are presumptively reasonable, so Pentaleri should be sentenced accordingly. But defense attorney Joseph Tamburino argued that his client deserved recognition for his distinguished 22-year military career, genuine remorse, lack of a criminal record, and strong support from family, friends and colleagues.

Military records and letters from supporters describe Pentaleri as one of the top majors in his brigade, "a diplomatic genius" who served in Iraq, Afghanistan and Pakistan. He was commended for saving the government millions of dollars in port fees by reducing shipping times to Iraq. The Army awarded him a Bronze Star in 2006....

Magnuson credited police and other law enforcement for averting a tragedy. He shaved 15 months from the bottom of Pentaleri's recommended prison term, ordering him to spend six years in prison followed by three years of supervised release.

Interesting debate over what a PSR is all about

As highlighted here at How Appealing, the Ninth Circuit yesterday rejected rehearing en banc of decision immunizing from prosecution under 18 U.S.C. sec. 1001 false statements made by a criminal defendant to a probation officer preparing that defendant's presentence report. The order denying rehearing en banc has a concurrence and two dissents has a lot of interesting talk about what a PSR is all about.

This case would seem to have cert potential if the government decides to try to take this issue to the Justices.

April 9, 2008

If only there was a sentencing chapter....

I might be able to justify buying this book as a business expense. Instead, I will just use the fact that we are only a few hours away from the start of the greatest golf event of the season as an excuse to plug what looks to be a cool little book about the intersection of golf and law, "The Little Green Book of Golf Law." Here is part of the publisher's blurb about the book:

John H. Minan writes on how violating "the law" of golf — as opposed to the rules that govern the game — can have serious consequences. You don't have to be a lawyer to enjoy this book, which combines two great passions: law and golf.

Each chapter examines a different set of facts and involves an actual case. The chapters explore a wide array of legal issues — Tiger Woods' right of publicity, personal injury claims for negligence and products liability, contract disputes involving hole-in-one contests and golf cart rentals, a forfeiture claim under the Endangered Species Act, the Internal Revenue Service's litigation against a taxpayer over tax deductions for golf expenses, patent and trade mark disputes, and more.

Fitting the times, "Hole 2" of this book is titled "The Masters of Augusta (Tiger wins at Augusta but scores a triple bogey in the federal courts)." And, speaking of times, as detailed here, Tiger starts his pursuit of his fifth Green Jacket at 10:45am on Thursday, and he is paired with the reigning US Open champion.

Official coverage of President Bush signing the Second Chance Act

Now available on the White House's official website is this press release with the heading, "President Bush Signs H.R. 1593, the Second Chance Act of 2007." Here are a few excerpts from the statements of the President of the United States that many lawyers might find useful to quote whenever they address state and federal sentencing judges throughout the United States:

I'm about to sign a piece of legislation that will help give prisoners across America a second chance for a better life. This bill is going to support the caring men and women who help America's prisoners find renewal and hope.

I can't thank the folks who care enough about a fellow citizen to offer their love and compassion. It's through the acts of mercy that compassionate Americans are making the nation a more hopeful place, and I want to thank you all for joining us today....

The country was built on the belief that each human being has limitless potential and worth. Everybody matters. We believe that even those who have struggled with a dark past can find brighter days ahead. One way we act on that belief is by helping former prisoners who've paid for their crimes -- we help them build new lives as productive members of our society.

The work of redemption reflects our values. It also reflects our national interests. Each year, approximately 650,000 prisoners are released from jail. Unfortunately, an estimated two-thirds of them are rearrested within three years. The high recidivism rate places a huge financial burden on taxpayers, it deprives our labor force of productive workers, and it deprives families of their daughters and sons, and husbands and wives, and moms and dads.

Our government has a responsibility to help prisoners to return as contributing members of their community. But this does not mean that the government has all the answers. Some of the most important work to help ex-convicts is done outside of Washington, D.C., in faith-based communities and community-based groups. It's done on streets and small town community centers. It's done in churches and synagogues and temples and mosques.

I like to call the folks who are engaged in this compassionate work, "members of the armies of compassion." They help addicts and users break the chains of addiction. They help former prisoners find a ride to work and a meal to eat and place to stay. These men and women are answering the call to love their neighbors as they'd like to be loved themselves. And in the process, they're helping prisoners replace anger and suffering and despair with faith and hope and love.

The bill I'm signing today, the Second Chance Act of 2007, will build on work to help prisoners reclaim their lives. In other words, it basically says: We're standing with you, not against you....

In [various] ways, the Second Chance Act will live up to its name; will help ensure that where the prisoner's spirit is willing, the community's resources are available. It will help our armies of compassion use their healing touch so lost souls can rediscover their dignity and sense of purpose....

And now it is my honor to sign this important piece of legislation. May God bless the country, and may God bless those who are trying to help. Thank you very much.

Though I have never had the honor and privilege to serve in the US Armed Forces, I like the idea that I am a foot soldier in our nation's many "armies of compassion." I also like hearing President Bush ask God to help me for trying to help those who have made a mistake in their lives but need and perhaps even deserve a second chance. The President's inspiring words make me proud to be an American, despite the ugly realities of our collective blissful ignorance about the many economic and human cost of mass incarceration, and I am excited that I am going to go teach a Legislation class in which the signing of this important piece of federal legislation will be the first substantive topic for discussion.

Registration fever: it starts with sex, then meth, then guns, then ...?

As regular readers know, though registration requirements are now universal and federally required for sex offenders, some local jurisdictions are using or thinking about requiring other kinds of offenders to register their whereabouts. As detailed in posts here and here, a couple of years ago meth offense registries were the hot idea. Now, as detailed in this local article from Maryland, it appears that a gun offense registry is becoming the talk of the towns:

Four months after it took effect, Baltimore’s new gun offender registry is starting to yield results — including its first criminal charge.

As of Tuesday, 47 people have registered under the new city law — the first of its kind in Maryland — which is modeled after many states’ sex offender registries. Late Thursday prosecutors filed their first criminal charge, when a Baltimore man’s Salisbury address didn’t check out.

“Extra attention on gun offenders is what we were looking for, and I think there’s reason to believe it’s going to have some effect,” said Sterling Clifford, spokesman for Mayor Sheila Dixon and the Police Department.... Margaret Burns, spokeswoman for the Baltimore City State’s Attorney’s Office, said prosecutors are “energized” to be working with police to crack down on gun offenders.

Burns said there are currently 76 people who have been convicted of gun crimes who will have to register upon release. Clifford said the office of the Gun Offender Registry is located next door to an office full of parole and probation officers, who work closely with the gun task force....

Dixon signed the Gun Offender Registry Act into law Sept. 20 of last year, and it took effect Jan. 1. The city ordinance requires gun offenders to register with the Police Department immediately upon release from imprisonment and every six months afterward for three years.

A gun offender who violates the act, which applies to every gun conviction in Baltimore, faces up to a year in prison or a $1,000 fine. Each day the violation continues constitutes a separate violation, prosecutors said.

The latest sentencing must-read for white-collar practitioners

Now available from SSRN at this link is a new piece from Peter Henning discussing white-collar sentencing issues. The piece is titled, "The Changing Atmospherics of Corporate Crime Sentencing in the Post Sarbanes-Oxley Act Era." Here is the abstract:

The Sarbanes-Oxley Act of 2002 has been viewed as a watershed event in dealing with corporate fraud. In addition to its extensive provisions dealing with internal controls and corporate accounting procedures, the law adopted new crimes and pushed the United States Sentencing Commission to enhance the Federal Sentencing Guidelines provisions for fraud and related offenses. Even before the adoption of the Act, the Commission had increased the potential punishment for white collar crimes by amending the loss table for fraud offenses. These two steps played a key role in the increased sentences imposed on defendants convicted for their role in corporate crimes, such as Bernie Ebbers (twenty-five years) and John Rigas (fifteen years). The Sarbanes-Oxley Act marked a change in the sentencing atmospherics for corporate crime that propelled judges to give out sentences that were unthinkable even five years earlier.

This article considers how the Sarbanes-Oxley Act changed the approach to sentencing of white collar defendants involved in corporate crimes. It uses a hypothetical case to illustrate how sentences under the Guidelines have tripled from what they would have been just a few years earlier. It then looks at the recent Supreme Court decision in Gall v. United States that emphasized the discretion federal judges have even under the Sentencing Guidelines to shape sentences that reflect the individual circumstances of the defendant. The change in sentencing created by the Sarbanes-Oxley Act may well be abating in the new era of discretion fostered by the Supreme Court.

Second Chance Act finally poised to become law

As detailed in this New York Times article, "President Bush is to sign the Second Chance Act in a public ceremony on Wednesday, making rehabilitation a central goal of the federal justice system." Here are some excerpts from the NYT piece:

With the new law, the federal government is to provide more money and leadership in a field where progress is likely to be difficult at best, experts agree. “From our perspective, this is a huge development,” said Michael Thompson, director of the Justice Center of the Council of State Governments. “Governors, legislatures, corrections and law enforcement agencies around the country were all very supportive of the act.”

The new push to help prisoners reintegrate into society has been driven in part by financial concerns: states cannot afford to keep building more prisons. It also reflects concern for the victims of repeat offenders and for the wasted lives of the offenders themselves, who are disproportionately black and from neighborhoods of concentrated poverty.

The act authorizes $165 million in spending per year, including matching grants to state and local governments and nongovernmental groups to experiment with efforts like more schooling and drug treatment inside prison and aid with housing, employment and the building of family and community ties after release. It also directs the Justice Department to step up research on re-entry issues and establishes a national Reentry Resource Center to promote successful approaches and provide training....

Over the last decade, the re-entry cause has been embraced by an unusually wide range of groups and individuals, including evangelical Christians and liberal activists. Mr. Bush called for such a law in 2004 and in Congress, key sponsors included Senator Sam Brownback, a conservative Republican from Kansas, and Representative Danny K. Davis, a liberal Democrat from Illinois. “It’s been a bipartisan coalition,” Mr. Travis said, “the sort of thing that doesn’t happen in Washington these days.”

UPDATE:This local article from the Brattleboro Reformer, "New bill will help released offenders," provides a local persepctive on the Second Chance Act:

State lawmakers and corrections officials are hoping that a bill President Bush is expected to sign today will help Vermont's struggling prison system. The president is expected to sign the Second Chance Act in Washington, D.C., today, which will give states money to invest in treatment and rehabilitation programs.

Senate Judiciary Chairman Patrick Leahy, D-Vt., co-sponsor of the bill, worked with the Vermont Department of Corrections and the Vermont Center for Crime Victim Services to identify programs in the state that support offenders when they re-enter society.

Vermont's director of planning in the corrections department, John Perry, said the federal law will hopefully bring much needed dollars to the state corrections system which is struggling to pay for many of the creative and successful reentry programs. "We are desperate for this money," Perry said. "The bill as it is written is very supportive of the sort of restorative justice and community justice programs we have here in Vermont."

CSM piece has latest crack retroactivity news

This article in the Christian Science Monitor, headlined "As many crack convicts are freed early, will crime rise?", includes some of the latest data on the implementation of crack retroactivity. Here is how the piece starts:

In an effort to eliminate a legal inequity — one that has hit African-Americans especially hard — federal judges have begun reducing the sentences of thousands of crack-cocaine offenders. Some police groups and prosecutors, as well as US Attorney General Michael Mukasey, assert that in trying to right a historic wrong, violent criminals are headed en masse back to the streets.

So far, indications are that this is not the case because the release process has safeguards built in. Statistics from the US Sentencing Commission, as well as interviews with federal public defenders and criminal-justice experts, indicate that federal prisoners who are to be released early are predominantly nonviolent and have good conduct records while in prison. Of the 19,500 drug offenders eligible over the next 30 years to apply for early release, 3,417 have had their sentences reduced as of Monday. Of the 1,500 inmates eligible for immediate release, dozens so far have been let go in the past month.

"There has been no release of a flood of violent criminals," says Michael Nachmanoff, federal public defender for the Eastern District of Virginia. "The people who are being released ... overwhelmingly had cases where there was no violence whatsoever and who were given unduly harsh sentences. And now, their sentences are being reduced by a modest amount."

April 8, 2008

Louisiana getting even crazier about sex offender sanctions

As detailed in this AP article, the folks in the bayou region cannot get enough of getting tough with sex offenders:

Masking at Halloween or Mardi Gras could become a forbidden tradition in Louisiana for people convicted of sex offenses under one bill approved Monday by a state Senate committee, and castration could become a sentencing option in some sex cases under another measure approved by the panel.

Sen. Nick Gautreaux, D-Meaux, sponsored the bills, both of which go next to the full Senate for debate later in the legislative session. Also Monday, the Senate was set to discuss a separate package of bills, backed by Gov. Bobby Jindal, that would raise the minimum jail sentence for molestation of a juvenile from one to five years and require such convicts to register with the state as sex offenders for life, instead of the current 15 years.

Gautreaux's castration bill, involving both physical and chemical castration, applies to a range of offenses including aggravated rape, simple rape, incest and indecent behavior with a juvenile. A judge would have the option of sentencing a first-offender to treatment with the drug medroxyprogesterone acetate, with the aim of diminishing his sexual impulses.

On a second offense the treatment would be mandatory, though in each case a medical expert would have to determine for the court that the treatment would be effective. Once ordered to undergo the treatment, the offender would have the option of physical castration — which Gautreaux said some offenders might prefer to avoid any drug side effects or in hopes of permanently curbing impulses that led to his offense.

Nobody spoke against the bill in committee Monday but committee members raised questions, including whether drug treatment would be mandatory under the bill for female sex offenders. Gautreaux said he would research the issue and deal with it when the bill comes up for floor debate. After the hearing, a lobbyist said the bill will be opposed. "It is state-sanctioned mutilation and that is cruel and unusual punishment," George Steimel, lobbyist for the Louisiana Association of Criminal Defense Lawyers, said Monday afternoon.

Should the NAACP and others really be concerned about the sentencing of the Barbie bandits?

A new sentencing story out of Atlanta, covered today by the AP and the Atlanta Journal-Constitution, seems very likely to become a topic of water-cooler dialogue. Here are the basics from the AP:

The head of the Georgia NAACP called for the state to investigate the sentences given in the so-called "Barbie bandits" bank theft case, saying the two white defendants got less prison time than two black men. Edward DuBose said Monday he will ask state Attorney General Thurbert Baker to look into the case. Baker's office did not immediately respond to a call seeking comment Tuesday.

Last month, Cobb County Superior Court Judge Mary Staley sentenced 20-year-old Heather Johnston to 10 years probation after she pleaded guilty to a charge of theft by taking in the 2007 heist. The judge gave 19-year-old Ashley Miller two years in jail and eight years probation. Both women are white.

Michael Chastang, 28, was sentenced to 10 years for being the mastermind of the robbery, and bank teller Bennie Allen III, 23, who pleaded guilty, was sentenced to five years. Both men are black. Chastang also is serving 15 years on unrelated drug-trafficking charges and Allen was on probation for a drug conviction.

Johnston and Miller — both former exotic dancers who went by the stage names "Charlie" and "Adrienne" — were nicknamed the "Barbie bandits" after they were videotaped wearing sunglasses and laughing as they appeared to rob a Bank of America branch in Acworth of $11,000.

Because this case seems to me to be more about gender than about race, I cannot help but wonder if the NAACP is the right group to be calling for an investigation. Then, again, I doubt that the National Organization for Women is generally too troubled when Barbies getting softer sentences than Kens, so maybe I should not be too surprised that this case is being racialized rather than gendered. I suppose if we really wanted to get this story buzzing, we might speculate about whether a President McCain or a President Clinton or a President Obama would be most likely to encourage the US Civil Rights division to take a close look at Georgia state sentencing practices.

SCOTUS Kennedy capital child rape case buzz starting

Next week the Supreme Court will hear oral argument on the constitutionality of the death penalty for a child rape offense in Kennedy v. Louisiana. As evidenced by this article in USA Today, the pre-argument media buzz is starting. Here are snippets:

The Supreme Court will weigh the constitutionality of the death penalty for child rape next week, in the case of a Louisiana man convicted of raping his 8-year-old stepdaughter. The dispute, closely followed by state officials, social workers and defendants' rights groups, marks the first time since 1977 that the justices will consider whether rape can be punished by death....

Several states, including Missouri, have signaled that if the court permits the death penalty for child rape in Louisiana, they may try to enact such laws. Five states already plainly allow capital punishment for raping young children.

Social workers warn that if the court sanctions the penalty for child rape, it could further discourage reporting of the crime because in the majority of child sexual assaults, the attacker is a relative or friend of the victim....

April 7, 2008

Hawai'i Supreme Court okays state's Blakely fix

Thanks to this post at How Appealing, I saw that the Hawai'i Supreme Court, in a lengthy split ruling, approved the constitutionality of the state's recent Blakely fix legislation. This article from the Honolulu Advertiser describes the basics of the ruling:

The Hawai'i Supreme Court has approved a new state law, passed by the Legislature in special session last year, that changes procedures for imposition of "enhanced" sentences of criminals identified as dangers to the community. In finding the law constitutional, however, the high court said prosecutors must notify such defendants at the outset of such a case that enhanced sentencing will be pursued if they are convicted.

In a 72-page, 3-2 decision written by Justice Steven Levinson, the court also approved provisions of the law that allows it to be applied retroactively to convicts who have received enhanced sentences. Hawai'i Attorney General Mark Bennett, who argued the constitutionality of the law before the high court, said "there are good and bad things" in the decision.

Local court starts examining Ohio's execution protocol

This AP story provides some highlights from the first day of a state court litigation concerning Ohio's lethal injection protocol:

An anesthesiologist testified Monday that Ohio's lethal injection procedure isn't appropriate for dogs or cats, let alone humans. Dr. Mark Heath's testimony on behalf of two murder defendants came in a Lorain County hearing on the constitutionality of state's method for putting prisoners to death.

Heath, an assistant professor of anesthesiology at Columbia University, says it's possible to perform lethal injection of prisoners in a humane manner, but that Ohio's method falls below the standard for euthanizing household pets....

Heath testified that the design of Ohio's death house was problematic because it separates the inmate from the person administering the drugs in two separate rooms. The rooms are separated by a one-way mirror. “Doing it that way substantially increases the risk of a major problem occurring,” said Heath, adding later, “I would never induce general anesthesia from a different room through long tubing.”...

Difficulties with two executions in recent years, in which the execution team struggled to find suitable veins in inmates' arms, brought complaints that the method is unconstitutionally cruel and unusual.

Ohio officials stand by the procedure. The state was expected to counter with expert witness Dr. Mark Dershwitz, an anesthesiologist from Massachusetts, who will testify via video conference Tuesday.

Thoughtful thoughts on Judge Weinstein's work in Polizzi

Over at Volokh, Orin Kerr has this extended discussion of Judge Weinstein's very extended Polizzi opinion (basics here and here), which reverses a conviction in a child porn case on debatable legal grounds. Here is the start of Orin's analysis:

Polizzi reads less like a judicial decision than a 266-page book of opinion essays. If I understand the reasoning of the opinion — not a small challenge with an opinion written in such a complex way over hundreds of pages — the basic argument is this: Recent Supreme Court decisions interpreting the Sixth Amendment like Blakely v. Washington suggest that the current Supreme Court greatly values the role of the jury, and as a result older precedents saying that the jury can't hear about sentences are inconsistent with the spirit of the Supreme Court's new cases and are no longer binding precedent.

April 6, 2008

The Second Amendment and speculating about post-Heller politics

The folks at Politico have this interesting new piece, headlined "Obama aims for pro-gun vote." The piece indirectly reinforces my view that the Supreme Court's Heller case could significantly change the politics of gun law debates. Here are snippets from the article:

Barack Obama [is]... making a play for pro-gun voters in rural Pennsylvania. By highlighting his background in constitutional law and downplaying his voting record, Obama is engaging in a quiet but targeted drive to win over an important constituency that on the surface might seem hostile to his views....

“Guns are a cultural lens through which they view candidates,” said Jim Kessler, vice president for policy at Third Way, a progressive think tank. “If you are seen as way off on that issue, then you seem way off on everything. If you are seen as OK, if the lens is clearer, then they continue to look at you and size you up on other things.”

“For Obama, who is less known and is from Chicago, a city guy and an African American, the feeling is that he is anti-gun,” Kessler continued. “By handling the Second Amendment correctly, he starts to get a hearing among these folks.”

Obama aides would not discuss the campaign’s strategy. While the effort so far in Pennsylvania appears modest, it is noteworthy for a race that has largely avoided such direct engagement with gun owners. The campaign has asked gun rights advocates like state Rep. Dan Surra, a Democrat from rural Elk County with an “A+” rating from the NRA, to form a coalition of supporters who can vouch for Obama. “It is clear out there that I am for Obama, and they have reached out to me as a sportsman and a gun owner,” Surra said Thursday. “There has been an outreach to pro-gun legislators, pro-gun people who are sympathetic to Obama’s message.”...

Obama has long backed gun-control measures, including a ban on semiautomatic weapons and concealed weapons, and a limit on handgun purchases to one a month. He has declined to take a stance on the legality of the handgun prohibition in Washington, D.C., which the U.S. Supreme Court is reviewing, although Obama has voiced support for the right of state and local governments to regulate guns.

In the Senate, he and Clinton broke on one vote, in July 2006. Siding with gun-rights advocates, Obama voted to prohibit the confiscation of firearms during an emergency or natural disaster. Clinton was one of 16 senators to oppose the amendment.

A two-page white paper on Obama’s website doesn’t mention his voting record. Instead, he introduces himself as a former constitutional law professor who “believes the Second Amendment creates an individual right, and he greatly respects the constitutional rights of Americans to bear arms.”

“He will protect the rights of hunters and other law-abiding Americans to purchase, own, transport, and use guns for the purposes of hunting and target shooting,” the paper states. “He also believes that the right is subject to reasonable and common sense regulation.” ...

Obama’s approach is similar to one advocated by Third Way, which issued a seven-step blueprint in 2006 to close the “gun gap” with Republicans. In a memo on its website, the group urges progressives to avoid silence on gun issues, and instead “redefine the issue in a way that appeals to gun owning voters.” ... The National Rifle Association posted an article on its website in February warning members against buying into Obama and Clinton, who were using the “scripted rhetorical tricks in the Third Way playbook to the letter.”

As I have highlighted in prior posts, if (and when?) the Supreme Court concludes in Heller that the Second Amendment protects an individual right to keep and bear arms, the next big legal and political question will be what government regulations are consistent with that right. And, as I have also highlighted in prior posts, I think the first hot post-Heller topics for federal litigation and debate will be the reasonableness of (1) broad federal laws prohibiting all felons (and domestic violence misdemeanants) from gun ownership and (2) extreme sentencing laws that can add decades to a sentence for possessing a gun in the wrong setting.

I am not sure what the National Rifle Association or the Third Way playbook has to say about these potential post-Heller gun rights/regulation topics. But my point here is to highlight, yet again, how any pro-individual Second Amendment ruling in Heller could make the legal and political debates over gun rights look a lot different in a few months.

Today's New York Times Magazine has this interesting piece, headlined "Soft Cell," that notices how a website has created a community for the family and friends of incarcerated persons. Here are snippets from the piece:

Prison Talk, a big board with nearly 150,000 members and 2,500 regular readers a day ...caters to what turns out to be an underserved consumer niche: family and friends of the incarcerated. Prison inmates, whose Internet access is extremely limited, also turn up periodically, usually seeking pen pals through a third party. The site, which costs nothing to join, was founded seven years ago and has drawn around 3.5 million messages, including poetry, small talk, business deals, memoirs, sermons, laments, photo albums and ideological screeds. Like the sprawling American prison system itself, the board has come to constitute a robust social reality — albeit one whose contents can’t be searched with Google or other engines, since Prison Talk is closed to the unregistered.

The board’s activity is propelled by the frustration and enterprise of lonelyhearts who crave contact while fighting boredom and despair. The postings, including those from former inmates, dramatize the widespread effects of imprisonment as vividly as any book since the 2000 exposé “Newjack,” Ted Conover’s chronicle of his year working as a corrections officer in Sing Sing, the maximum-security state prison in New York. And even Conover couldn’t offer the sheer volume of fine-grain logistical detail and jaw-dropping incongruities that surface on Prison Talk: topics on the site include marrying someone in prison; raising children whose parents are imprisoned; loving lifers; curing dry winter skin; preparing for executions; and having fun (jokey guards, nightly dance-offs) behind bars.

The posts themselves are by turns rueful, salacious, puzzled and pleading.... Prison Talk promises support without judgment, and in accordance with the site’s bylaws, uncooperative members are banned. (The site also counsels members to be circumspect with information that might be used against inmates or jeopardize their appeals.)

David Frisk, an aerial photographer and home-automation expert, started Prison Talk in 2001 to helped convicts’ loved ones navigate the prison system. Frisk hatched his idea in a jail cell: he served time in the early ’90s in a medium-security federal prison for pawning a rifle while on probation for auto theft. Like anyone working online, he has since developed theories about revenue streams. Small but constant banner ads, targeted for his audience, run along the top of Prison Talk.... Frisk, who is known on the site by his screen name, Fed-X, has been accused by detractors of exploiting a vulnerable and largely female membership by encouraging dependence; soliciting contributions as if the site were a charitable cause and not an ad-sponsored business; and promoting dodgy ventures like a print magazine that some subscribers say they never received...

Most Prison Talk members, however, seem fiercely loyal to him, and say they feel deeply beholden to Prison Talk itself. Many of them virtually live on the site, concluding their posts with tickers — countdown widgets, like the ones used on pregnancy and weight-loss boards — showing how much time is left in their chosen inmate’s sentence....

A small band of board activists, led in part by a Prison Talk member named Judy Wickliff, has recently used the site to plan a latter-day Boston Tea Party to protest the disenfranchisement of American prisoners. “No incarceration without representation” is their slogan. In July they plan to bombard legislators with mailed tea bags and a list of proposed reforms to the criminal-justice system. It could be said that Prison Talk is steadily documenting and even galvanizing a subculture, if it weren’t for the February report from the Pew Center on the States that one in 99 people in America is now in prison. Let’s call it a culture, then.

The main website for Prison Talk is here, and I would be interested in reader reactions to both Prison Talk and to this NYTimes Magazine article about it.

My first reaction is a bit of surprise that the Prison Talk board has "only" 150,000 members even though it has been around since 2001. The number 150,000, which might seem pretty big, likely represents far less than 1% of the total population of Americans who have been incarcerated or have a family member or close friend who has been incarcerated since 2001. Then again, since many criminal defendants and their friends and family are relatively poor, it is possible that only a limited percentage of the incarcerated and those around them have consistent access to a computer with an effective Internet connection.

More great local coverage of crack retroactivity realities

Local newspapers continue to provide interesting and valuable coverage of the local realities of implementing the new federal sentencing guidelines for crack offenses. Here are links to notable new stories from Arizona and Florida and South Carolina:

As detailed in posts here and here, last year the Georgia Supreme Court struck down part of the state's sex offender residency restriction on a takings theory. Now, as detailed in local stories here and here, the state legislature has tried to fix the law. However, as this excerpt spotlights, this legislative fix may not end the constitutional litigation over these matters:

The Georgia General Assembly has passed legislation reinstating residency and work restrictions on registered sex offenders. The restrictions were voted on Friday without going through the typical Senate committee process, and without hearings on the Senate side....

Senate President Pro Tempore Eric Johnson ... stated that the bill addressed the Georgia Supreme Court's concerns about property rights. However, the bill only exempts sex offenders who own their own homes. In that case, the sex offenders can remain in their homes if a day-care center, church, park, or other forbidden area locates within 1,000 feet of the home.

Tenancy is a property right, by law, said Sen. Vincent Fort, D-Atlanta. He is concerned that the bill does not provide protection for renters. "There could be further legal challenges," Johnson said.... "We can continue to address some things in the future," Johnson said. But, "if we do not adopt this bill today, there are no restrictions on where they can live and work. It is critical that we now adopt 908, which is now in SB 1."...

"On its face, it's unconstitutional," said Sen. Nan Orrock (Email), D-Atlanta. "There is different treatment of homeowners and those who rent. We're already in murky constitutional ground." Then, there are the unintended consequences, she said. "With sexual offenders who have served their time and who are back in the community, our highest priority is that they not re-offend and prey on another victim," Orrock said. But putting in the residency restrictions "set in motion this moving around of former sex offenders." Studies show, clearly, she said, that sex offenders who have to move from a stable home or job are more likely to re-offend....

The restrictions are exactly the same as the ones implemented in 2006. In almost every case, all registered sex offenders are treated equally, regardless of whether they were convicted of child rape or public urination. No sex offender may live within 1,000 feet of a child care facility, church, school, or "area where minors congregate." Those areas are defined as: parks, recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, school bus stops, public libraries and public and community swimming pools. Adding libraries is the only change to that definition.

New study confirms we do not treat murderers like dogs

As this AP story details, examination of lethal injection protocols is not awaiting a Supreme Court ruling in Baze. Here is the latest news based on the latest research:

Nearly all lethal injection executions have occurred in states where veterinarians are not allowed to use the same method to euthanize animals, according to a new study.

One of the three drugs used in executions, the one that paralyzes the condemned inmate, has been banned from use in animal euthanasia by at least 42 states, said the study author Ty Alper, a death penalty opponent and associate director of the Death Penalty Clinic at the University of California-Berkeley School of Law. Those states include the five leaders in lethal injections — Texas, Oklahoma, Virginia, Missouri and North Carolina — and account for 907 of the 929 executions that have been carried out by that method since 1982.

More details on the new study and related issues are available here from Lethal Injection.org. The new study by Ty Alper, which is titled "Anesthetizing the Public Conscience: Lethal Injection and Animal Euthanasia," is available at this link.

By the end of the year, Florida's prison population could top 100,000. The cost of keeping those prisoners behind bars runs close to $20,000 per inmate, per year, and the total correctional budget is more than $2.5 billion. Despite a prison-building spree in the 1990s, Florida's state correctional institutions are near capacity, and the state will need an estimated two new prisons a year to keep up.

When state coffers are full, prison budgets get little scrutiny. But lawmakers are staring down a $2 billion hole in next year's budget. And some of them are coming to the realization that Florida's lock 'em up philosophy has gone too far, that it's time to rethink some of the overbearing sentencing laws that cost the state so much. The alternative -- slashing drug treatment and education for inmates and reducing programs that help people turn away from crime -- is all but guaranteed to boomerang on the state, producing an even greater number of people locked hopelessly behind bars and an even tougher strain on taxpayers.